Tuesday, September 30, 2014

To Hell With Tradition

Anyone who has bothered to turn on the news during Question Period over the last, oh I'd say nine years, probably finds themselves in a continuing series of disbelief when the whole spectacle is over. This wasn't a trend that was started by the Harper Conservatives, but it was certainly perfected by them. Especially when one views the actions of one Paul Calandra.

Calandra rose out of the fall of Dean Del Mastro taking Dean's place as the Parliamentary Secretary to the Prime Minister; or more aptly, the PM's mouthpiece when the PM isn't in the House of Commons. Calandra made name, and a reputation, for himself when he served as Harper's 'deflector shield' with regards to questions surrounding Mike Duffy and the Senate Expenses Scandal.

Calandra's non-answers, outright dodges, and ridiculous non-sequiturs involving his family and pizza shops set a new low for decorum within the House of Commons. When it was all said and done, I think most Canadians thought the bar could not get any lower. It seems we all completed underestimated Paul Calandra.

Last Tuesday, Tom Mulcair rose to ask questions on Canada's involvement in fighting ISIS/ISIL in Iraq. Enter Paul Calandra, who rejected the premise of the question put to him and instead went off on a tangent about Israel and whether or not Mulcair agreed with a position posted by a reported party fundraiser on Facebook.

Mulcair appropriately laughed off Calandra's first response; even putting in a jibe about understanding Calandra's confusion with I countries in the Middle East, but the question was about Iraq not Israel. Mulcair repeated the question, and again Calandra rose and provided more or less the same response.

Mulcair appealed to the Speaker at this point, noting that there are rules regarding relevance and asked that they be enforced. Again, Calandra spouted non-sense with response to the question put to him.

Of course, this led to Mulcair making a comment with regards to the Speaker's impartiality (or lack thereof), which led to the Speaker finally taking action but against Mulcair and not Calandra. Mulcair was stripped of his remaining questions for the day, and Question Period moved on.

What followed was quite the media firestorm.

Numerous political reporters called it an unbelievable display, unheard of before in Canadian Parliamentary history. And then came the chorus of talking heads: some of the side of Mulcair, and others on the side of Speaker Andrew Scheer. (Unsurprisingly, no one really rushed to Calandra's side.)

And so began a question of who was in the right and who was in the wrong.

Many condemned Mulcair for challenging the Speaker's impartiality; while others agreed that Mulcair was right to challenge Scheer on the issue. So, how is it possible that so many of Canada's best informed political minds could have such differing views? Surely, the laws of the land that govern the role of the Speaker and the House of Commons would prevent any sort of casual interpretation?

"The Speaker or the Chair of Committees of the Whole,
after having called the attention of the House, or of the Committee, to
the conduct of a Member who persists in irrelevance, or repetition, may
direct the Member to discontinue his or her speech, and if then the
Member still continues to speak, the Speaker shall name the Member or,
if in Committee of the Whole, the Chair shall report the Member to the
House."

Defenders of Scheer, however, were quick to point out that this Standing Order applies only to debate and not to the content of answers in Question Period. However, this definition seems to be at odds with Parliament's own summary of Standing Order 11.2; the historical summary section is of particular interest.

No where does it mention that 11.2 doesn't apply to Question Period. In fact, it seems to be convention based on past precedent that leads people to argue that 11.2 doesn't apply to QP.

Which brings me to a few fundamental questions we must explore.

Firstly, what do we make of claims towards Scheer's impartiality?

Secondly, just how much of our government expectation revolves around convention and tradition over the written word?

Finally, what do we do about it?

Since his election as Speaker, Andrew Scheer has faced some criticisms towards his ability to remain impartial in the House of Commons.

Scheer sat on the letters, refusing to table them in the House of Commons or even release them for public viewing. A lot of people saw this as Scheer protecting two of his fellow party members; and it was indeed one of the first instances that caused people to wonder just where Scheer's loyalty stood at the end of the day. (Glover and Bezan have since 'settled' with Elections Canada.)

Then came the matter of the NDP's satellite offices and mailings. Under a little used procedural motion, the Conservatives forced a motion that compelled Tom Mulcair to appear before committee to testify. At the time, Scheer said nothing and allowed the motion to pass. A month later, after Mulcair had testified, Scheer retroactively ruled the motion out of order. He also took the time to chide the NDP for waiting a month to file an objection.

"Whenever the Speaker is of the opinion that a motion
offered to the House is contrary to the rules and privileges of
Parliament, the Speaker shall apprise the House thereof immediately,
before putting the question thereon, and quote the Standing Order or
authority applicable to the case."

In short hand, the Speaker has the ability (and responsibility) to inform the House whether or not a motion that is put forward could be considered out of order. Furthermore, the Speaker has the ability to do this without a Member of the House calling a point of order.

"In fact, Scheer advised the House, he very likely would have ruled the
motion out of order at the time — had he been asked to do so, that is,
which he was not."

So, how do we read this? Well, it gives us one of two possibilities.

Firstly; Scheer knew the motion was out of order, and that he had the authority to inform the House of that, yet he chose to do nothing.

Secondly; Scheer didn't know at the time that it was out of order, and retroactively claims he did in order to ensure the House, and Canadians, that he is informed in his job when he apparently isn't.

Both options are frightening for different reasons. Either he knew, and he did nothing; or he didn't know, but now wants us all to believe that he did. I can understand the second, if only because I'm sure all of us want to believe the Speaker knows the workings of the House and the procedures like the back of their hands. As Tom Mulcair said, "you are our arbiter", and a Speaker who is ignorant of the rules can hardly be expected to maintain them.

If it's the first, then it's only further proof that Scheer is definitely not leaving his 'blue jersey' in the locker room when he takes to the Speaker's Chair. If it's the latter, then at the very least we need to encourage Scheer to read up again on the rules and make sure he is ready to enforce them.

Secondly, that brings us to our second question; just how much of our government is based around convention?

The answer is actually a little worrisome, given that it's more than the average Canadian would think. The best way to think about this is to go back and look at Reserve Powers. This refers to the legal powers of the Governor General. The last time a GG flexed their reserve powers, we ended up with the King-Byng Affair.

A brief summary of that: After an election, Mackenzie King had fewer seats than the Conservative Party under Arthur Meighen. Despite this, King asked to be recognized as PM since he was counting on the Progressive Party to shore up his numbers and give him more seats in the Commons. The Governor General, Lord Julian Byng, agreed on a condition that if the government fell Meighen's Conservatives would form government.

Well, King's alliance with the Progressives was short lived due to scandal and King asked Byng to dissolve the government and call an election. Byng refused, citing the previous agreement. He in turn asked Meighen to form government, forcing King to resign as PM.

History still argues over who was right and wrong; some favour King, others favour Byng, but it shows the fine line between constitutionally based power and convention. Governor Generals to this day enjoy Reserve Power; which would allow them to dismiss a Prime Minister or refuse Royal Assent to a bill, but conventionally they don't use this power.

The Speaker of the House finds themselves in a similar quagmire.

Standing Orders, as referenced earlier, grant the Speaker powers and responsibilities. Yet, convention and tradition state that those powers aren't used regularly. Take the question over whether or not 11.2 applies to Question Period.

The rule of the law states that the Speaker has the authority to rule on relevance, yet convention somehow states that those rules do not apply to Question Period. Like the Governor General, we've endowed the Speaker with authority that apparently we conventionally expect them not to use.It's not uncommon, and Scheer has done it often, for Speakers to reference past Speakers and their decisions when they make a judgement on something. That creates a lot of precedent that often flies in the face of the written rules and powers for the Speaker. Just because a Speaker in 1976 chose to read a rule a certain way, or ignore it, doesn't exactly mean the same interpretation holds in 2014 for a similar, yet different, situation.That brings us to the final question: What do we do about it?Well, the NDP is trying to bring change forward, with a motion introduced this week to give the Speaker explicit authority to act during Question Period. However, the Conservatives have attacked the motion.House Leader Peter Van Loan has argued about the motion turning Question Period into a "one way street" that would tie the hands of the government.Well, here's the good for the goose and gander argument. If the Conservatives defend Scheer's inaction based on convention and tradition, then they need to look back to the Speaker James Jerome. In 1974, Jerome ended the practice of allowing Parliamentary Secretaries (like Paul Calandra) to pose questions to the opposition.Furthermore, if we want to stick to convention, Ministers are conventionally not allowed to ask questions since they often provide answers on behalf of the government; the rules do not forbid Ministers asking questions, but convention says that only Private Members should do so. So, conventionally speaking, the government side of the House shouldn't be asking questions from the front bench (Cabinet) at least. Van Loan, and his party it seems, want to have their cake and eat it too in this regard. Let us keep this part of the conventional tradition, but disregard this other. Either they have to commit wholeheartedly to whole bundled mess that is Parliamentary Tradition, or they have to work with the Opposition Parties to codify new and clear rules.The NDP motion is looking doomed to fail thanks to no support from the Conservative bench. So for now, we're stuck with the notion of conventional tradition as the guiding principle for how our Parliamentary system is administered.The bigger problem, as I think we've illustrated, is not that the Speaker actually needs more powers (they already have them), they just need the will to exercise them.People have already drawn comparisons to our Speaker and the Speaker of the House in the UK Parliament. Many have linked to the Speaker shutting down speakers from the floor, including the Prime Minister. Yes, Parliamentary systems evolve and we should be looking to other Parliaments to see what sort of improvements have been made and should be adapted here.But until we accept that written rule and authority has more credence than past 'convention', all the reform in the world won't do a thing.